2022 SC BAR CONVENTION - Probate, Estate Planning & Trusts Section "Probate, Estate Planning & Trusts
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2022 SC BAR CONVENTION
Probate, Estate Planning & Trusts
Section
“Probate, Estate Planning & Trusts
Update”
Friday, January 21
SC Supreme Court Commission on CLE Course No. 220980
SC Bar-CLE publications and oral programs are intended to provide current and accurate information about the subject matter covered and are designed to help attorneys maintain their professional competence. Publications are distributed and oral programs presented with the understanding that the SC Bar-CLE does not render any legal, accounting or other professional service. Attorneys using SC Bar-CLE publications or orally conveyed information in dealing with a specific client's or their own legal matters should also research original sources of authority. ©2022 by the South Carolina Bar-Continuing Legal Education Division. All Rights Reserved THIS MATERIAL MAY NOT BE REPRODUCED IN WHOLE OR IN PART WITHOUT THE EXPRESS WRITTEN PERMISSION OF THE CLE DIVISION OF THE SC BAR. TAPING, RECORDING, OR PHOTOGRAPHING OF SC BAR-CLE SEMINARS OR OTHER LIVE, BROADCAST, OR PRE-RECORDED PRESENTATIONS IS PROHIBITED WITHOUT THE EXPRESS WRITTEN PERMISSION OF THE SC BAR - CLE DIVISION.
2022 SC BAR CONVENTION
Probate, Estate Planning and Trusts
Section
Saturday, January 22
Who’s in Charge Here? The Who, What, Where
and Why of Selecting a Fiduciary
William G. Newsome, III
Meagan L. MacBean
Shawn Eubanks
Jonathan E. Spitz
No Materials Available
2022 SC BAR CONVENTION
Probate, Estate Planning and Trusts
Section
Friday, January 21
Transfers at Death - Intellectual Property,
Cryptocurrency & Digital Assets
Lee-ford Tritt
R O U G H D R A F T: (Do Not Cite Without Author’s Permission)
THE CURIOUS CASE OF JAMES BROWN’S ESTATE:
COPYRIGHT TERMINATIONS AND MARIAGE
Probate, Estate Planning and Trusts Section Update
2022 South Carolina Bar Convention
Friday, January 21, 2022
Prof. Lee-ford Tritt
University of Florida Levin College of Law
©Lee-ford Tritt
2
R O U G H D R A F T: (Do Not Cite Without Author’s Permission)
JAMES BROWN’S ESTATE
CLE OUTLINE
I. INTRODUCTION (5 minutes)
II. OVERVIEW OF THE JAMES BROWN’S ESTATE ( 5 minutes)
III. COPYRIGHT LAW (10 minutes)
IV. COPYRIGHT RECAPTURE (15 minutes)
V. ESTATE BUMPING (15 minutes)
VI. CONCLUSION (5 minutes)
3
R O U G H D R A F T: (Do Not Cite Without Author’s Permission)
THE CURIOUS CASE OF JAMES BROWN’S ESTATE:
STATUROY COPYRIGHT TERMINATIONS AND MARIAGE
Lee-ford Tritt1
I. INTRODUCTION.
[James Brown Intro]
As evidenced in the ongoing litigation for James Brown’s Will, an artist will face a
number of challenges in the estate planning context, especially if the artist intends to transfer his
or her copyright interests to a charitable foundation. Copyrights can produce unforeseen
consequences to an artist’s original estate plan, and this is largely due to the termination of
transfer rights (“termination rights”) found under the Copyright Act of 1976 (the “1976 Act”). 2
In fact, termination rights create problematic implications not only for estate planning
techniques, but also for tax law and not-for-profit scenarios, including those centered on artist-
endowed foundations.
I noted in a previous paper for the Aspen Institute’s National Study of Artist-Endowed
Foundations, that Ownership of the artist’s copyrights is essential if an artist-endowed
foundation’s charitable purpose is to be realized by programs intended to increase public access
to and knowledge about the artist’s art. This typically involves activities that require use and
stewardship of copyrights—such as publications, exhibitions, licensing of images and text, etc.
In theory, termination rights provide authors a “second bite at the apple” by enabling authors to
take back previously assigned copyright interests in order to reassign them for a second chance
to profit. Time has passed since the initial publication of that piece, but the charitable role of
copyrights are still effected by termination rights and the impact they have on artist’s intent to
bequeath their copyrights permanently to a foundation.
Copyright law refers to all copyright creators as “authors,” whether the copyrightable
work is a novel or a painting.3 For authors, and others with a stake in their copyright interests,
termination rights are a topic of increasing importance. An author (or, upon the author’s death,
the author’s statutorily-defined class of heirs) has the right to reclaim a previously assigned
copyright during a five-year window of opportunity that opens at a date after the original
transfer.4 The possibility of termination applies to all types of transfers (whether donative or not),
except those transfers made by the author’s last Will and Testament. In other words, unless the
author’s Will transfers the copyright, termination rights may apply.
1. Professor of Law at the University of Florida College of Law and Director of The Center for Estate Planning.
2. Act of Oct. 19, 1976, Pub. L. No. 94-553, 90 Stat. 2541 (codified as amended at 17 U.S.C. §§101-810 (2006)).
3. The creator of a copyrightable work is referred to as the “author” regardless of the nature of the work. See, e.g., 17 U.S.C.
§ 106A.
4
Act of Oct. 19, 1976, Pub. L. No. 94-553, 90 Stat. 2541 (codified as amended at 17 U.S.C. §§101-810 (2006)).
4
R O U G H D R A F T: (Do Not Cite Without Author’s Permission)
One often overlooked concern created by termination rights is a concept referred to as
“estate bumping,”5 which refers to the ability of a statutorily defined class of heirs ability to
exercise termination rights and control the disposition of the author’s copyright interests.6 An
author cannot divest this defined class of heirs of their termination rights nor can the author alter
their power of termination. The 1976 Act enables unintended beneficiaries—including those that
have been expressly disinherited—the ability to rewrite, or “bump,” an author’s estate plan,
ensuring that copyright law, rather than an author’s exercise of testamentary intent, ultimately
determines who profits from the author’s works after death.
Termination rights can cause a number of problems for estate planners and charitable
organizations. The consequences of termination rights can be severe—including estate bumping;
adverse income, gift and estate tax implications; and disqualification of a family member from
engaging in transactions with an author’s private foundation. Some of these problems may arise
due to the disparate nature of the pertinent legal disciplines. Many estate planners are simply
unaware of termination rights and many copyright experts maybe unacquainted with modern
estate planning techniques, so it is essential for counsel to discuss with an author the potential of
estate bumping when estate planning.
Estate planning problems associated with termination rights are intensified because the
statutory provisions are complicated, the regulations offer little insight, and the legislative history
is sparse. The termination rights exception for transfers made “by Wills” provides an author
with a narrow remedy to estate bumping. In addition, until the uncertainty as to whether the
statutory interpretation of the “by Will” exception could be interpreted broadly enough to include
Will-substitutes, prudence should lead an author and his or her counsel to deal with copyrights
outside of the trust context. Moreover, an author should be cautious concerning any lifetime
transfer of a copyright to other testamentary-like instruments, including revocable trusts or
charitable trusts, or any other entities until the permutations of the 1976 Act are better
understood. Once the copyrights are transferred during the lifetime of the author, a specific
bequest under the author’s Will may not be enough to insulate the copyrights from the frustrating
effects of estate bumping. Therefore, an understanding of both the technical details and the
policy underlying the creation of termination rights is essential for estate planners and
organizations that wish to recognize—and mitigate—the potential adverse consequences of
estate bumping.
II. COPYRIGHT LAW.
Fully comprehending the conflict between effective estate planning and copyright law
requires a rudimentary understanding of copyright property characteristics and the law that
governs copyright.
5. For a detailed discussion of the estate bumping phenomenon under federal copyright law, see Lee-ford Tritt, Liberating
Estates Law from the Constraints of Copyright, 38 RUTGERS L.J. 109 (2006) .
6. 17 U.S.C. § 203.
5
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Copyright law in the United States is constitutionally based and is governed entirely by
federal law.7 Article I, Section 8, Clause 8 (the “Copyright Clause”), provides Congress with
the power to “promote the Progress of Science and useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”8 The
theory behind the creation and protection of copyrights is that by granting artists the exclusive
right to exploit their works for a period of time, intellectual innovation will grow.9 In essence,
the Framers incentivized artists to develop arts and other works by essentially granting artists a
durational monopoly on the exploitation of their works, which benefits and enriches society at
large.
Therefore, Congress’s must balance the interests of authors against the stated public
purpose of the Copyright Clause. Congress protects the authors’ interests by granting copyright
protection to original works of art that are “fixed in any tangible medium of expression.”10
Copyrightable works include (i) literary works; (ii) musical works, including any accompanying
words; (iii) dramatic works, including any accompanying music; (iv) pantomimes and
choreographic works; (v) pictorial, graphic, and sculptural works; (vi) motion pictures and
audiovisual works; (vii) sound recordings; and (viii) architectural works.11
Authors have four distinct rights in original works for a finite period of time: (i) the right
to reproduce the copyrighted work, (ii) the right to prepare derivative works, (iii) the right to
distribute copies to the public, and (iv) the right to perform the works or display the works in
public.12 This period of exclusive exploitation, however, is limited in duration. The 1976 Act
(as modified in 1998 by the Sonny Bono Copyright Extension Act) provides that the copyright
term of a work created after January 1, 1978 will last for the author’s life plus seventy years.13
When the term of the copyright expires, the work enters the public domain.14
Ownership of the Tangible Work versus the Copyright Therein
7. States may not enact copyright protections that conflict with federal law. 17 U.S.C. § 301.
8. To this end, the Supreme Court has said that copyright law should be construed to benefit the public at large rather than
to protect individual authors. See United States v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948) (“The copyright law, like
the patent statutes, makes reward to the owner a secondary consideration. . . . The sole interest of the United States and the
primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.” (citation
and internal quotation marks omitted)); see also Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975); Goldstein
v. California, 412 U.S. 546, 555 (1973); Mazer v. Stein, 347 U.S. 201, 219 (1954).
9. Ann Bartow, Intellectual Property and Domestic Relations: Issues to Consider When There Is an Artist, Author, Inventor,
or Celebrity in the Family, 35 FAM. L.Q. 383, 384 (2001), at 384 (“The general theory underlying intellectual property law is
that individuals will expend more time, energy, and resources in innovative, creative pursuits if the fruits of their endeavors are
likely to lead to financial rewards.”).
10. 17 U.S.C. § 102(a)(“Copyright protection subsists … in original works of authorship fixed in any tangible medium of
expression … from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a
machine or device”).
11. 17 U.S.C. § 102(a)(1)-(8).
12. 17 U.S.C. § 106(1)-(5).
13. In the case of joint works, the copyright term is measured by the life of the last surviving joint author plus 70 years.
In addition, the copyright term for a “work made for hire” (generally, works made by an employee) lasts for a term of 95 years
from the date of publication of the work, or 120 years from its creation date, whichever expires first. 17 U.S.C. § 302.
14. 17 U.S.C. § 302.6
R O U G H D R A F T: (Do Not Cite Without Author’s Permission)
It is important to understand the different between the ownership of a copyright interest
and the ownership of the material object in which the work is fixed (i.e., the physical
copyrightable work) when making estate planning decisions. Ownership of the copyright is a
separate and distinct property right from the ownership of a physical embodiment of the
underlying work.15 Accordingly, transferring a material copy of the underlying work does not
convey a copyright, nor does transferring the copyright interest convey the material object.
For example, an artist that sells his original painting can still retain ownership of the
copyright in the painting. This prevents the owner of the physical painting from reproducing the
painting and retaining reproduction rights without first getting permission from the artist—the
copyright owner.16 It follows that a beneficiary who is given ownership of the physical work
does not also get the testator’s copyright ownership unless the testator specifically states that in
his Will. This is because a copyright interest is a separate and distinct property interest from the
physical embodiment of the work. To note, if the copyright is not specifically bequeathed, the
copyright will pass with the testator’s residuary clause, 17 if any, or under the intestacy laws of
the testator’s domicile at death. Therefore, estate planners must take care in drafting a bequest
to be sure that both the tangible work and the intellectual property rights are conveyed to the
intended beneficiary. The two examples below illustrate these issues.
Scenario 1: Sue, a successful artist, is married to Sam. Sue would like to bequeath one
of her paintings entitled “The Painting” to a charitable foundation upon her death. At the time
of Sue’s death, she owned The Painting and the copyright associated with The Painting. If Sue’s
Will states: “I give and bequeath my painting entitled ‘The Painting’ to the ABC Foundation,
and the rest of my estate to my husband, Sam.” Then the copyright associated with The Painting
will not pass to the ABC Foundation because the copyright is a separate property interest that
must specifically be bequeathed. Therefore, the copyright in the painting will pass under the
residuary clause to Sam instead.18
Scenario 2: If, however, Sue’s Will states: “I give and bequeath my painting entitled
‘The Painting’ and any copyright interests I may own therein to the ABC Foundation, and the
rest of my estate to my husband, Sam.” The Painting and the copyright associated with it will
pass to the Foundation and not inadvertently pass to the artist’s husband.
15. Current copyright law, as enacted by the 1976 Act, states that “[t]ransfer of ownership of any material object . . . in
which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object.” 17 U.S.C. §
202.
16
See Kate Spelman and Susan Von Herrmann, Estate Planning and Copyright, 5 Landslide 43, 44 (2013) (“Copyright
ownership may encompass any or all of the following rights: the right to reproduce the work; prepare derivative works; distribute
copies by sale or by rental, lease, or lending; perform the work publicly; perform sound recordings by digital audio transmission;
and display the work publicly.”).
17. A residuary clause is a provision in a Will that disposes of any remaining estate assets after satisfying the testator’s
specific bequests and devises.
18. In addition, under the partial interest rules of I.R.C. § 2055(e)(4)(c), the charitable bequest might not qualify for a
charitable deduction because the transfer might be deemed a split-interest transfer (i.e., splits the art work from the copyright).
In addition, the “related use” rules may be applicable. Both the partial interest rules and the related use rules are discussed supra
Section IV.B..7
R O U G H D R A F T: (Do Not Cite Without Author’s Permission)
***
Generally, and similar to other property right owners, an author can exercise or assign
any or all of her rights, or transfer ownership of the copyright altogether, during her lifetime or
at death. However, Congress enacted a unique property right afforded only to copyright
authors—a non-assignable right to recapture previously assigned copyright interests. These
recapture rights were first implemented through the “renewal system” promulgated in earlier
copyright acts, but are now realized through termination rights under the 1976 Act.
III. COPYRIGHT RECAPTURE.
The principle that authors should have the right to recapture previously assigned
copyrights has a long history in American copyright law.19 Congress wanted to grant authors a
second opportunity to benefit from their works after an original assignment. The policy
underlying the copyright recapture system was to protect for authors against the superior
bargaining positions of entrepreneurs and art patrons interested in acquiring copyrights.20
Authors often licensed their copyrights for minimal compensation because they had no way of
knowing how successful one of their works could become at the time. As a result, a recapture
system was conceptualized to “permit authors, originally in a poor bargaining position, to
renegotiate the term of the grant once the value of the work has been tested.”21
A. Renewal Rights.
Prior to the 1976 Act, the recapture system was accomplished through a two-term
“renewal system” outlined in the Copyright Act of 1909.22 The duration of copyright protection
was divided into two distinct temporal terms. Under the Copyright Act of 1909, authors held
exclusive rights in a copyright work for an initial term of twenty-eight years and held the right
to renew the copyright for an additional twenty-eight years.23 If an author assigned her rights in
the copyrightable work during the initial twenty-eight year term, she could recapture her assigned
19. For a detailed discussion of the historical evolution of the copyright recapture schemes and mechanisms under federal
copyright law, see Tritt supra note 4.
20. See H.R. REP. NO. 60-2222, at 14 (1909) (“It not infrequently happens that the author sells his copyright outright to a
publisher for a comparatively small sum. If the work proves to be a great success and lives beyond the [initial] term, . . . your
committee felt that it should be the exclusive right of the author to take the renewal term, and the law should be framed as is the
existing law, so that he could not be deprived of that right.”). This paternalistic approach stemmed from the widely held view
that publishers and other large corporate entrepreneurs would naturally have superior bargaining positions. In reality, “unlike
real property, . . . [a copyright] is by its very nature incapable of accurate monetary evaluation prior to its exploitation.” MELVILLE
B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 9.02, at 9-30 (1996).
21. H.R. Rep. No. 2222, at 14 (1909).
22. For a discussion of the renewal system and the phenomenon known as Will bumping, see Tritt, supra note 16; Francis
M. Nevins, Jr., The Magic Kingdom of Will-Bumping: Where Estates Law and Copyright Law Collide, 35 J. COPYRIGHT SOC’Y
77, 114 (1988); Michael Rosenbloum, Give Me Liberty and Give Me Death: The Conflict Between Copyright Law and Estates
Law, 4 J. INTELL. PROP. L. 163, 201-02 (1996).
23. Pub. L. No. 349, §§23-24, 35 Stat. 1075, 1080-81 (1909).8
R O U G H D R A F T: (Do Not Cite Without Author’s Permission)
rights by securing a second term of years. In other words, all previously assigned, sold or gifted
copyright interests reverted back to the author in the second twenty-eight year term. In theory,
the right of renewal gave an author a second chance to profit from the copyright by canceling
any transfer made during the first term and returning the copyright to the author for a second
term.
The author only had the right to renew if she was alive at the end of the initial term.
However, the work did not automatically fall into the public domain if the author died during the
initial term. Instead, the renewal term rights (and any profits derived from the future exploitation
of the copyright) passed to a statutorily-defined class of heirs (the author’s spouse and/or
children). This meant that the author could not assign or transfer a renewal interest unless he or
she survived the expiration of the first term. Any assignment before the renewal interest vested
was voidable at the surviving family members’ option. For example, if an author assigned or
bequeathed the renewal interest (during his lifetime or at death) to a third party outside the
statutorily-defined class of heirs, including a revocable trust, a private foundation, a partnership
or a corporation, and died before the renewal term vested, the author’s spouse and children could
“bump” the assignment and reclaim the copyright—effectively disregarding the author’s intent.
Congress intended this renewal right to be unassignable and exclusive to authors and
their families so that they “could not be deprived of this right.”24 Nevertheless, in 1943, the
Supreme Court held that an assignment of the renewal right was valid,25 thereby thwarting
Congress’s intention.26 This decision, allowed publishers to use their initial bargaining power to
require authors, who were usually in a lower bargaining position, to sign away their renewal
right at the outset of the contractual relationship, defeating the purpose of the recapture system
and the renewal term.
B. Termination Rights.
The 1976 Act replaced the two-term renewal system with termination rights.27 Now, an
author (or the author’s spouse or children) may terminate (or “bump”) any lifetime assignment
or license of a copyright with respect to any work created on or after January 1, 1978. In other
words, an author, or his or her statutorily-defined heirs, can reclaim his or her copyright interest
in a work that he or she previously assigned.28 A few notable examples include the litigation for
24. H.R. Rep. No. 60-2222, at 14 (1909).
25. Fred Fisher Music Co., Inc. v. M. Witmark & Sons, 318 U.S. 643 (1943).
26. As observed by Justice White in Mills Music Inc. v. Snyder, 469 U.S. 153, 185 (1985)(White, J. dissenting)(Congress’s
attempt to grant authors a future copyright interest “was substantially thwarted by this Court’s decision in Fred Fisher Music Co.
v. M. Witmark & Sons.”).
27
For thorough explorations of the evolution, mechanism, applications and limitations of termination rights, see generally
Tritt supra note 4; and Sean Stolper, Termination Rights: An In-Depth Look at Looming Issues Under the Copyright Act of 1976,
13 TEX. REV. ENT. & SPORTS L. 33 (2011).
28
Patrick Murray, Heroes-for-Hire: The Kryptonite to Termination Rights Under the Copyright Act of 1976, 23 SETON
HALL. J. SPORTS. AND ENT. L. 411, 4117 (2013).9
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rights to John Steinbeck’s work,29 rights to Superman,30 and rights to a number of Marvel
characters created by Jack Kirby.31
Musicians, like James Brown, were first able to exercise their termination rights in
32
2013. Many recording artists have begun encountering is the question of work-for-hire. Under
the 1976 Act, a work-for-hire is not included under copyrighted works an artist can reclaim
through termination rights.33 Today, sound recordings are not considered works for hire, so an
artist can reclaim them under the 1976 Act.34 There are a number of questions about how the
contracts artists make with recording companies potentially make artists employees, and, in turn,
makes their art works-for-hire.35 However, this article will not analyze those questions.
Most musicians settle issues about their contracts and their exercise of termination rights
outside of court, so there is not much case law about musicians abilty to reclaim their works. For
example, in 2017, Paul McCartney filed a federal lawsuit asking for declaratory judgment against
Sony/ATC claiming ownership of songs he wrote with the Beatles, including “Hey Jude,”
“Yesterday,” and the “I Want to Hold Your Hand.” He filed suit in a New York District Court,
arguing that the 1976 Copyright Act’s provision requiring works to be returned to their creators
fifty-six years after the original copyright applies to the Beatles songs. This would mean that
McCartney was entitled to the copyrights in 2018. The two parties settled in a confidential
agreement.
Regardless of if the author is a writer, musician, or artist, his or her termination rights
must be executed properly within designated time periods. This allows the author (or the
author’s spouse or children) to recapture any remaining value in the copyright interest. In
29
In 1938 Steinbeck transferred publication rights in many of his later works (including Of Mice and Men and Grapes of
Wrath) to Viking Press; Penguin later assumed this contract. In 1994 his widow—the sole owner of the copyrights—entered
into a new agreement for publication rights in the books; his two sons from a prior marriage were not party to the agreement.
After the widow died in 2003, the surviving son and grandson served notice on Penguin seeking to terminate the 1938 agreement.
Penguin Group v. Steinbeck, 537 F.3d 193 (2d Cir. 2008).
30
In 1937 the two creators of Superman (Siegel and Shuster) entered into their first licensing agreement with Detective
Comics (later DC Comics); the first Superman Comic was published in April of 1938. In 1948 the parties engaged in litigation
over an ownership dispute of the copyrighted material and entered into a settlement confirming that DC was the owner. An
embarrassing NY Times article in 1975 resulted in a third agreement in which Warner Bros (now the parent company of DC)
agreed to pay the creators a “modest” salary in exchange for another declaration that DC owned Superman. In 1997 the Siegel
heirs served notice of termination of all these agreements with an effective date of 1999. Though negotiations ensued, this date
passed without event; the parties, however, both agreed to waive an argument of SoL in a tolling agreement in order to pursue
settlement. Negotiations broke down and litigation ensued. Siegel v. Warner Bros., 542 F. Supp. 2d 1098 (C.D. Cal. 2008).
31
Between 1958 and 1963 a freelance artists (Jack Kirby) created a number of graphic works for Marvel, including such
famous characters as The Fantastic Four, The Incredible Hulk, The Mighty Thor, Spider Man, Iron Man, The X-Men, and The
Avengers. In 1972 Kirby executed an agreement that purported to transfer any interest he possessed in works created for Marvel;
the agreement seemed prophylactic as it did not state that Kirby actually owned a copyright and, in fact, contained a clause
acknowledging that the works were created by Kirby “as an employee” of Marvel. Kirby died in 1994, survived by his widow
and four children. All the statutory heirs joined in the termination notices under 304(c), served in 2009. Marvel Worldwide v.
Kirby, 777 F. Supp. 2d 720 (S.D.N.Y. 2011).
32
Kike Aluko, Terminating the Struggle over Termination Rights, 10 HARV. J. SPORTS & ENT. L. 119, 119 (2019).
33
17 U.S.C. § 10.
34
Kike Aluko, Terminating the Struggle over Termination Rights, 10 HARV. J. SPORTS & ENT. L. 119, 122 (2019).
35
See Kike Aluko, Terminating the Struggle over Termination Rights, 10 HARV. J. SPORTS & ENT. L. 119 (2019) for an in-
depth discussion.10
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practical terms, even if the artist specifically sold all of his rights and interests in a copyright, the
artist (or the author’s spouse or children) could still terminate the transfer and take back the
copyright without having to compensate the assignee.
When Transfers May be Terminated
The 1976 Act has two sections on termination rights. Section 203 governs copyright
transfers made on or after January 1, 1978. This section authorizes authors (or the author’s
spouse and children) to terminate any transfer or assignment of copyright during a five-year
window of opportunity that begins thirty-five years from the date of the transfer.36 Section
304(c) governs transfers before 1978,. Section 304 permits termination during a five-year
window of opportunity that begins fifty-six years after the work was copyrighted. Notably, the
1976 Act makes termination rights inalienable, which means transfers of termination rights by
authors or by heirs have no legal effect.37 This paper will focus on Section 203 termination
provisions—transfers made on or after January 1, 1978.38
Authors (or the author’s spouse or children) must affirmatively exercise termination
rights during the applicable time frame.39 (Remember, the provisions specifically exclude the
termination of transfers made by Will and, under Section 203, only apply to transfers
implemented by the author and not the author’s devisees or assignees.) Complicated rules govern
when and how the termination right must be exercised. In general, termination under Section
203 “may be effected at any time during a period of five years beginning at the end of thirty-five
years from the date of the execution of the grant.”40 To effectuate termination, the author (or the
author’s spouse or children) must serve the grantee with written notice that states the effective
date of termination (the effective date must fall within the prescribed five year period).41 The
36. Copyright transfers executed on or after January 1, 1978 began to vest in 2003 (for grants made in 1978) and the first
wave of actual terminations under this statutory provision will in 2013 (1978 + 35 years).
37
Benjamin Newell, Saving the Next Superman:An Alternative to the Taxation of Copyright Termination Rights, 21 J.
INTELL. PROP. L. 379, 382. (2014)
38. Sections 203 and 304(c) share significant commonality concerning termination rights, particularly excluding termination
of grants made by a Will. One of the main differences, however, is that Section 304(c) applies to grants made by the author and
any statutorily defined heirs while Section 203(2) applies exclusively to grants executed by the author. The difference in the
statutory requirements for termination between transfers made before 1978 and transfers made in or after 1978 is the basis for
the issues central to several high profile termination cases, including some of A.A. Milne copyrights in Winnie the Pooh, some
of John Steinbeck’s copyrights in later works, and Eric Knight’s copyrights in Lassie. See respectively, Milne es rel. Coyne v.
Stephen Slesinger, Inc., 430 F.3d 1036 (9th Cir. 2005), Penguin Group (USA) v. Steinbeck, 537 F.3d. 193 (2 nd Cir. 2008), and
Classic Media, Inc. v. Mewborn, 532 F.3d 978 (9 th Cir. 2008). For pertinent discussions concerning how the courts are
interpreting the differences, see Joshua Beldner, Charlie Daniels and “The Devil” in the Details: What the Copyright Office’s
Response to the Termination Gap Foreshadows About the Upcoming Statutory Termination Period, 18 B.U. J. SCI. & TECH. L.
199 (2012); and Michael J. Bales, The Grapes of Wrathful Heirs: Termination of Transfers of Copyright and “Agreements to
the Contrary,” 27 Cardozo Arts & Ent. L.J. 663 (2010).
39. To effectuate a termination of previously transferred copyrights, proper notification is required as dictated by both the
copyright statute and the Register of Copyrights. 17 U.S.C. §§ 203(a)(4)(B), 304(c)-(d); 37 C.F.R. § 201.10. If the proper
notification is not made during the mandated term, the author will lose the ability to recapture the copyright that had been granted.
17 U.S.C. § 203(b)(6).
40. 17 U.S.C. § 203(a)(3). If the grant covers the right to publication, however, the five year period begins on the earlier
of thirty-five years from the date of publication or forty years from the date of execution. Id.
41. 17 U.S.C. § 203(a)(4)(A). Section 203(a)(4) requires compliance with other formal requirements of notice as well.11
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notice must be served not less than two years or more than ten years prior to termination date.42
In essence, Section 203 creates a thirteen-year window of opportunity for termination notice.
It is important to differentiate between the vesting of the right to terminate, the vesting
of the potential ownership in the soon-to-be terminated copyright, and the actual ownership of
the copyright after termination to determine who has the right to terminate and who will receive
the copyright at the applicable termination date. Remember, an author’s interest to the right to
retake the copyright vests when timely notice is served on the grantee, which can occur up to ten
years before commencement of the five-year termination period.43 But, the actual copyright
interests themselves do not revert to the author (or the statutorily-defined class of heirs) until the
applicable termination date.44 This can create a time gap between the service of the notice of
termination and the actual termination date.
For instance, an author can serve notice of termination ten years before the copyright is
actually terminated. The author now has a vested interest in the soon-to-be terminated copyright,
but the author does not own the copyright until the actual termination date. This time gap can
create some issues. If the author dies after serving notice of termination but before the
termination date, does the copyright pass according to the author’s wishes as part of the author’s
estate or do the statutorily-defined class of heirs get to re-serve notice of termination and receive
the property upon the termination date?
A properly effectuated termination notice restores ownership of a copyright to all those
who possessed termination rights as of the date that the notice was filed. Therefore, if an author
serves a notice of termination, but dies prior to the date of repossession, the copyright passes to
the author’s estate rather than to the statutorily defined class of heirs.45 In contrast, if the author
survives to a date when he or she could have served a termination notice but dies without serving
one, the statutorily-defined class of heirs gain the right to serve such notice and take the reversion
at the applicable termination date. After the actual termination date, the terminator (whoever this
may be) becomes free to commercially exploit the copyright or transfer it to others.
Which Transfers May be Terminated
Any exclusive or nonexclusive transfer of copyrights, or of any right under a copyright,
may be terminated if transfer meets all of the requirements of the termination provisions. 46
Termination rights are very difficult to lose and cannot be contracted away, waived, or assigned.
“Not even a specific, well [drafted contract] by an author to forgo the termination right is binding
on [the author].”47 These termination rights apply to all transfers and assignments except for
42. Id. A copy of the notice also must be recorded in the Copyright Office before the effective date of termination. Id.
43. 17 U.S.C. § 203(a)(4)(A).
44. Id. §§ 203(b)(2), 304(c)(6)(B).
45. Bourne Co. v. MPL Commc’ns, Inc., 675 F. Supp. 859, 862 (S.D.N.Y. 1987) (stating that vested rights under a
terminated grant passed to the author’s estate when the author died after notice of termination had been served but before rights
under the terminated grant reverted), modified and amended by 678 F. Supp. 70 (S.D.N.Y. 1988).
46. Under Section 203(a), termination rights apply exclusively to grants executed by the author, not grants made by the
author’s devisees or assignees (this is in contrast to Section 304(c) terminations).
47. Bartow, supra note 7, at 402.12
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transfers effectuated by the author’s Will.48 In contrast to the renewal system, the only type of
copyright transfer that cannot be terminated or bumped by the author’s statutorily-defined class
of heirs is one executed by the author’s Will. Basically, inter vivos, or lifetime transfers, remain
bumpable.
Who May Terminate Transfers
An author can exercise termination rights so long as he or she survives beyond the start
of the window of opportunity to serve notice of termination, but if the author dies (before the
window of opportunity to serve the notice of termination opens or, after the window has opened
but before the author actually serves notice of termination) the right to terminate—as well as the
right to any reversionary interest in the copyright—passes to the author’s statutorily-defined
class of heirs (the author’s spouse or children). Termination rights only pass by operation of law
to the author’s spouse and children: The author may not give or bequeath termination rights to
anyone outside the statutorily-defined class of heirs, and any gift or bequest of termination rights
is subject to “bumping.” This operation evidences Congress’s intent to give the benefits of
copyright recapture to authors’ statutorily defined class of heirs, rather than the author’s
assignees or devisees.
Generally, the author’s statutorily defined class of heirs consists of the surviving
49
spouse, children, and grandchildren, if any. If no members of the first class are found, the
author’s benefits of copyright recapture is assigned to the author’s executors, administrators, and
trustees.50 If the author dies leaving only a spouse (and no children or grandchildren), the spouse
takes the entire termination interest. If the author dies leaving only children or grandchildren
(and no surviving spouse), the entire termination interest is divided among the children and
grandchildren on a per stirpetal basis – an equal share for each child, with a deceased child’s
share divided among the deceased child’s descendants.51 The deceased child’s interest can be
executed by majority action of his or her surviving children.52 If the author dies leaving both a
surviving spouse and children or grandchildren, the spouse takes half of the termination interest,
while the remaining half interest is divided among the author’s children on a per stirpetal basis.
The many ways an author’s termination rights can pass show that estate planning lawyer’s should
48. See 17 U.S.C. §§ 203(a), 304(c) and 304(d). In addition, termination rights do not apply to works made for hire. Id.
49. The United States Supreme Court, in United States v. Windsor, 570 U.S. __ (2013) held section 3 of the Defense of
Marriage Act (“DOMA”) to be unconstitutional. Section 3 of DOMA had barred same-sex married couples from being
recognized as "spouses" for purposes of federal laws. For federal copyright purposes, the “author’s ‘widow’ or ‘widower’ is the
author’s surviving spouse under the law of the author’s domicile at the time of his or her death, whether or not the spouse has
later remarried.” Id. § 101 (2000) (emphasis added).
50. 17 U.S.C. § 203(a)(2).
51. The statute defines “grandchildren” as the “surviving children of any dead child of the author.” Id. § 203(a)(2)(B).
52. Id. § 203(a)(2)(C); see also H.R. REP. NO. 94-1476, at 125 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5741.13
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be sure to know who the author’s spouses, children, and grandchildren are and should be able to
identify them.53
The exercise of a termination right requires agreement between statutory heirs owning
more than half of the termination interest.54 If the author is survived by a spouse and children,
the surviving spouse must join with at least one child in order to terminate. If the author is
survived only by children, then a majority of these children must join in a termination. If there
are only two statutory heirs, either can disrupt the other’s plans for termination. In the event the
author dies leaving no surviving spouse, children or grandchildren, the termination right vests in
the author’s executor, administrator, personal representative, or trustee.55 Where there is more
than one statutory heir, the termination right is divided and apportioned among the statutory heirs
by statute.56
IV. ESTATE-BUMPING.
Because of the nature of termination rights, authors are practically limited in determining
to whom they can transfer their copyright interests, 57 are precluded from using many efficient
and effective estate planning techniques, and are unable to control the timing and nature of their
donative transfers. In many circumstances, termination rights undermine charitable authors who
want to make lifetime gifts of their copyrights to charities.
Estate bumping is a phenomenon created and promulgated under federal copyright law.
As previously discussed, an author cannot strip the statutorily-defined class of heirs of
termination rights or alter the size of the interest that vests in any particular heir, and the only
exception to termination rights is transfers made by the author’s Will. As a result, lifetime
assignments by the author may be “bumped” by the author’s statutorily-defined class of heirs if
the author does not live long enough to exercise his or her termination rights or survives the
window of opportunity to serve a notice of termination. Though termination rights do not apply
to transfers executed by Will, a conflict between copyright law and testamentary freedom exists
because of the practical implications of the termination rights provisions.58 The copyright code
53
To best identify these heirs, an estate planning attorney can ask their client questions like: do you have any copyrighted
works? Have you assigned your interest in that copyrighted work? Was a family member, like a spouse or parent, a creator?
Have they every created a copyrighted work? Kate Spelman and Susan Von Herrmann, Estate Planning and Copyright, 5
LANDSLIDE 43, 45 (2013).
54. Id. § 203(a)(1).
55. 17 U.S.C. § 203(a)(2)(D).
56. Id. § 203(a)(2).
57. In addition, termination rights call into question the very nature of any donative transfer of copyrights—whether the
transfer is an irrevocable transfer, a revocable transfer, or a split interest. Generally, an analysis of gifts, sales, and other transfers
for gift and estate tax purposes is partially based upon the irrevocable nature of such transfer. The right to terminate a grant
therefore raises multiple issues, which include the valuation of the right to terminate, the inclusion of assets in the estat e of a
decedent possessing the right to terminate, and the effect, if any, on certain intended irrevocable transfers, such as charitable and
marital deductions.
58
For an opposing view of termination rights vis-a-vis testamentary freedom, see Lydia Pallas Loren, Renegotiating the
Copyright Deal in the Shadow of the “Inalienable” Right to Terminate, 62 FL. L. REV. 1329 (2010). (“Some have criticized the
termination provisions as interfering with an author’s freedom to dispose of her estate. However, . . . the termination right is14
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fails to carve-out similar exceptions for other types of donative transfers, which have
testamentary effect, such as Will-substitutes (i.e., revocable trusts), charities, and other modern
estate planning mechanisms. “Estate-bumping,” therefore, is a creature of the copyright code.
Because estate-planning practitioners are often unaware of termination rights and some
copyright practitioners are not familiar with modern estate planning techniques, the potential of
the copyright law “bumping” an author’s carefully prepared estate plans looms large in many
situations. If estate-planning practitioners are unaware of, or fail to plan for, the estate-bumping
effects of termination rights, Estate planning practitioners that are unaware of, or fail to plan for,
the estate-bumping effects of termination rights will continue to plan the estates of copyright
authors using common estate planning techniques, leaving the estates vulnerable.
To better understand the adverse effects copyright law has on testamentary freedom, a
brief discussion of estate planning mechanisms (other than Wills) through which testamentary
freedom flows is necessary. Copyright law places extreme limitations on testamentary freedom
and has the potential to destroy an author’s estate plan by bumping the author’s estate plan. This
list of conflicts between termination rights and common estate planning techniques is not
exhaustive, but the discussion demonstrates the pervasiveness of estate-bumping and its effect
on testamentary freedom and asset disposition.59
A. Revocable Trusts.
In many states, revocable trusts (sometimes called “living trusts”) are increasingly used
in place of Wills for the management and distribution of an individual’s assets at death. A
revocable trust is a Will-substitute that disposes of an individual’s assets at death.60 The
revocable trust is quickly becoming the testamentary instrument of choice in states with a wealth
of intellectual property, such as California, Florida, and New York.
Revocable trusts are popular due to their significant advantages over Wills.61 Revocable
trusts are generally not subject to court-supervised probate administration, which makes the
process more cost-effective and takes the instrument out of public court records.62 In contrast,
when an individual dies with only a Will, the Will is probated and an inventory of the probate
assets must be filed with the court, making the Will and the inventory of assets matters of public
record. The public nature of the Will probate process has many practical disadvantages for
more properly characterized as a new estate . . . As a new estate, a termination right does not interfere with any ownership rights
of the author.”) Id., at 1347-1348.
59, For a full treatment of the various ways in which termination rights can bump an authors’ estate plans (including gift
and estate tax planning and the use of family holding companies), see Tritt supra note 4.
60. The creator of the revocable trust, sometimes referred to as a “grantor” or a “settler,” transfers title of certain assets to
the revocable trust. During the grantor’s lifetime, the trust can be revoked or amended by the grantor at any time. At the grantor’s
death, the assets held by the trust pass according to the trust instrument and thus avoid the probate process. The revocable trust
agreement works in conjunction with a “pour-over” will, a will that merely directs that any assets still in the grantor’s name
should pour-over and be disposed of in accordance with the terms of the revocable trust agreement. Accordingly, the revocable
trust agreement contains most of the substantive and dispositive provisions that are normally found in a will.
61. For a general discussion concerning the advantages of revocable trusts, see JOEL C. DOBRIS ET AL., ESTATES AND
TRUSTS: CASES AND MATERIALS 511-12 (2d ed. 2003).
62. See id.15
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certain individuals, and the public nature of the probate process could lead to others
misconstruing the testator’s intentions.63 For example, a child may be disinherited or assets may
be left to children in disproportionate shares. An individual may even leave assets to a friend or
co-worker. An individual may be gay and desire to avoid potential Will contests from heirs under
the state’s intestacy scheme by keeping the dispositions of assets private or out of a Will. Putting
the dispositive provisions of an estate plan into a revocable trust has the effect of keeping the
dispositions private and shielding the composition of the estate’s assets from the public eye.
Revocable trusts also provide benefits in an elder law context by providing for the
potential incapacity of the grantor. If a grantor of a funded revocable trust becomes incapacitated,
the trustee can manage the assets for the incapacitated individual’s benefit free from the
otherwise necessary appointment of a costly court-supervised guardian.64
There are other advantages to using a revocable trust as well. Immediately upon the
grantor’s death, a trustee moves into a position to manage securities, pay expenses, and make
distributions to beneficiaries without the delay of probate. Creditors often cannot attach to trust
property after the grantor’s death. Finally, the court supervision required for actions involving
Wills is not required for revocable trusts. The appointment, removal, and resignation of trustees,
the changing of the situs of the trust (for example, to reduce state income tax), can be
accomplished more easily and economically.
Termination rights attach to all assignments except those effectuated by an author’s Will.
Transfers to or by a revocable trust are not considered transfers “by Will,” so all dispositions by
a funded revocable trust may be subject to the estate-bumping aspects of termination rights.
Notably, one commentator has suggested (though without citation to a source) that a court might
interpret the “by Will” provision of the termination statute to include transfers by will substitutes,
including revocable trusts.65 Even if the interpretation to the plain meaning of the statute was
open for interpretation—until the uncertainty is clarified—estate planners should not gamble
with their client’s copyright interests. Funding a revocable trust with copyright interests may
expose the client’s estate to the harsh results of estate bumping.
63. See KATHERYN G. HENKEL, ESTATE PLANNING AND WEALTH PRESERVATION: STRATEGIES AND SOLUTIONS ¶ 7.02, at 7-
3 (abr. Ed. 1998). See generally id ¶7.03 (discussing revocable trusts).
64. See JESSE DUKEMINIER ET AL., WILLS, TRUSTS AND ESTATES at 317 (7th ed. 2005)(“Many persons are reluctant to have
a spouse or parent formally adjudicated an incompetent.”); see also HENKEL, supra note 43, ¶ 7.03, at 7-7.
65. RALPH E. LERNER & JUDITH BRESLER, ART LAW: THE GUIDE FOR COLLECTORS, INVESTORS, DEALERS, & ARTISTS at 1440
(4th ed, 2012) (“The question remains whether a will substitute . . . escapes any claim of termination after the artist’s death. . . It
appears from the legislative history that Congress was attempting to eliminate the concept of will-bumping and that a court could
interpret the term “the will” to include a revocable trust.”). Id., at 1440. Following this logic, though, all donative lifetime
transfers arguably could fit within the “by Will” exception to the termination rules—which would be a wonderful result and
eliminate the concept of estate bumping altogether. A revocable trusts is testamentary in nature in that it disposes of an
individual’s assets at death. And, a revocable trust basically is the alter ego of the grantor—during the grantor’s lifetime, the
trust can be revoked or amended by the grantor at any time. For these reasons, and more, revocable trusts are analogous to a
testamentary transfer at death by Will. But, transfers to a revocable trust are actual lifetime transfers (not death time) and, in
many ways, are seemingly no different than donative transfers to an irrevocable trust or private foundation or an established
charitable organization. Under these estate planning techniques, though, the property owner generally could not resend the
donative transfer (similar, in ways, to non-donative assignments). Without spilling too much ink, there are many aspects of
revocable trusts that make them distinct from Wills. And, the plain language of the statute states by “Wills.” Although I would
favor an interpretation of the statute to include all donative transfers, I would not want my client’s estate to be the test case.16
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Although it does not involve a charitable beneficiary, the following scenario serves,
nonetheless, to demonstrate the potentially problematic interplay of a revocable trust and
termination rights:
Scenario 3: Sam is in his second marriage, and is married to Sue. Sam has children from
the previous marriage as well as children from his marriage with Sue. Sam has substantial wealth
consisting of valuable copyright interests and other valuable assets. Sam and Sue have retired to
Florida. Sam’s new estate-planning practitioner drafts a revocable trust and a pour-over Will for
Sam. On his lawyer’s advice, Sam funds the revocable trust (i.e., transfers his assets over to the
trust during his lifetime instead of at death by his Will). Upon Sam’s death, the revocable trust
establishes a continuing trust for his children from the previous marriage with the copyright
interests while the rest of his assets pass to Sue, who will later provide for his children by her.
This structure would avoid potential conflicts between Sue and Sam’s children from the previous
marriage at the time of Sam’s death, while adequately providing for all family members.
Unfortunately, the estate-bumping aspects of the termination rights may destroy this
well-prepared estate plan. Funding a revocable trust during Sam’s lifetime was not a transfer “by
Will.” Sue and her children will have the required majority vote to bump Sam’s estate plan and
retake the copyrights from the continuing trust. Although Sam’s children from the previous
marriage will still benefit from the copyright interests (they are also part of the statutorily-defined
class of heirs), the children will not benefit to the extent that Sam intended.
Note the difference between a funded revocable trust and an unfunded revocable trust.
Had Sam used is Will to fund the revocable trust at death and not funded his revocable trust
during his lifetime, this would have been a transfer “by Will,” and his estate would be free of
any unintentional estate bumping.
B. Charitable Gifts.
Charitable planning is often a major component of an author’s estate plan, as was the
case for James Brown’s “I Feel Good” trust. Donative transfers to certain charities are treated
favorably under the federal tax regime. There are many ways to take advantage of the charitable
deduction—making gifts and bequests to charitable entities, creating charitable trusts, and
establishing private charitable foundations, to name a few. Therefore, it is essential to become
familiar with the income tax charitable deduction under Internal Revenue Code (“I.R.C.”) §170,
the gift tax charitable deduction under I.R.C. § 2522, the estate tax charitable deduction under
I.R.C. § 2055, modern charitable planning techniques, and the private foundation rules.66
Income Tax Charitable Deduction
66. An extensive discussion of charitable tax deductions, charitable planning techniques, and the private foundation rules
are beyond the scope of this paper.17
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For federal income tax purposes, an individual who itemizes his or her deductions may
deduct a percentage of his or her charitable contributions of money or property made to, or for
the use of, qualified charitable organizations.67 Generally, qualified organizations include
nonprofit groups that are religious, charitable, educational, scientific, or literary in purpose, or
that work to prevent cruelty to children or animals.68
For authors wanting to donate their work to public charities, there are two income tax
rules concerning charitable deductions that should be of special concern. First, for income tax
purposes, a work of art and its copyright are not treated as two distinct properties like they are
treated under federal copyright law and for estate and gift tax purposes.69 Threfore, to qualify for
67. The percentage of the allowable income tax charitable deduction varies according to (i) the classification of the charity
receiving the donation and (ii) the type of property being donated. Generally, the income tax deduction for gifts to “public
charities” (described in I.R.C. § 170(b)(1)(a)) or private operating foundations (as described in I.R.C. § 4942(j)(3)) is limited to
50% of adjusted gross income (“AGI”), but the deduction is limited to 30% of AGI for gifts of appreciated capital gain property.
I.R.C. § 170(b)(1)(C). The income tax charitable deduction percentage for gifts to private foundations is limited to 30% of AGI
, but is limited to 20% for appreciated capital gain property. I.R.C. §§ 170(b)(1)(B) and (D).
68. A charitable contribution is defined in I.R.C. § 170(c)(1) as a contribution or gift to or for the use of a state, a possession of
the United States, or any political subdivision of any of the foregoing, or the United States or the District of Columbia, made
exclusively for public purposes, and in I.R.C. § 170(c)(2) as a contribution or gift to a corporation, trust, or community chest,
fund, or foundation described in I.R.C. § 501(c)(3). Contributions to I.R.C. § 501(c)(1) organizations, corporations organized
under Acts of Congress that are instrumentalities of the United States, are deductible under I.R.C. § 170(c)(1). Contributions to
I.R.C. § 501(c)(4) organizations are deductible under I.R.C. § 170(c)(1) if made to the organization for the use of a state, a
possession of the United States, or any political subdivision of the foregoing, the United States, or the District of Columbia, if
the contributions are made exclusively for public purposes. In generally, an individual may deduct a charitable contribution
made to, or for the use of, any of the following organizations that otherwise are qualified under I.R.C. § 170(c) of the Internal
Revenue Code:
1. A state or United States possession (or political subdivision thereof), or the United States or the
District of Columbia, if made exclusively for public purposes;
2. A community chest, corporation, trust, fund, or foundation, organized or created in the United
States or its possessions, or under the laws of the United States, any state, the District of Columbia
or any possession of the United States, and organized and operated exclusively for charitable,
religious, educational, scientific, or literary purposes, or for the prevention of cruelty to children
or animals;
3. A church, synagogue, or other religious organization;
4. A war veterans' organization or its post, auxiliary, trust, or foundation organized in the United
States or its possessions;
5. A nonprofit volunteer fire company;
6. A civil defense organization created under federal, state, or local law (this includes
unreimbursed expenses of civil defense volunteers that are directly connected with and solely
attributable to their volunteer services);
7.A domestic fraternal society, operating under the lodge system, but only if the contribution is to
be used exclusively for charitable purposes;
8. A nonprofit cemetery company if the funds are irrevocably dedicated to the perpetual care of
the cemetery as a whole and not a particular lot or mausoleum crypt.
The Internal Revenue Service provides an on-line Exempt Organizations Select Check system that allows users to select an
exempt organization and check certain information about its federal tax status and filings at http://www.irs.gov/Charities-&-
Non-Profits/Exempt-Organizations-Select-Check.
69. See I.R.C. §§ 170(f)(3) and 1.170A-(b)(1)(i).You can also read
